Monday, October 3, 2011

Liberty Square / Zuccotti Park on the morning of Thursday, September 29, 2011. Lunching office workers in the foreground, Occupy Wall Street protesters in the center of the park.

I spoke today with Professor Jerold S. Kayden, Harvard Professor and author of the book “Privately Owned Public Space: The New York City Experience.” Professor Kayden graciously led me through the sometimes arcane business of New York City’s incentive zoning rules and regulations. Here’s what I found out from our conversation and from Professor Kayden’s book.

Zuccotti Park, known as Liberty Square by the Occupy Wall Street protesters, is considered a “special permit plaza.” Technically speaking, unlike previously reported, it’s probably not a “bonus” plaza, where the original developers secured extra floor space at One Liberty Plaza, the fifty four floor skyscraper just to the north of the park. Bonus office space at that building likely was allowed by the creation of the public space around the building itself. Instead the special permit plaza likely came into being in exchange for other zoning concessions authorized by the Department of City Planning.

Regardless, according to Kayden, the park’s owner Brookfield Office Properties likely agreed to provide a “physical place located on private property to which the owner has granted legally binding rights of access and use to members of the public, most often in return for something of value from the city” (Kayden, Privately Owned Public Space, p.21), that “value” in this case being a zoning concession.

So can Brookfield ask the protesters to leave?

No and Yes.

“The Zoning Resolution requires privately owned public spaces to host ‘public use,’ but never expressly defines limits, if any, an owner may impose upon such public use. The Department of City Planning has taken the position that an owner may prescribe ‘reasonable’ rules of conduct. In determining the definition of reasonable, the Department has looked to the rules of conduct applicable in City-owned parks for general guidance.” (Kayden, POPS, p.38.) Note that these are very similar to the kind of “time, place and manner” restrictions that the city is using against artists working in public parks and that are at the heart of artists’ current lawsuit against the Parks Department in the Lederman federal case.

Professor Kayden believes that creating a rule of conduct that says “no political protests” is unlikely to be considered “reasonable” under these terms, but that this is not a First Amendment issue. The park is still privately owned and says Kayden, “in all likelihood, it would be an uphill climb to maintain that Brookfield Office Properties is a governmental actor subject to the full provisions of the First Amendment.” (See American Manufacturers Mutual Insurance Company v. Delores Scott Sullivan, 526 U.S. 40 (1999) for a court ruling on standards for what constitutes “state action” by a private owner.)

However, while Brookfield likely can’t ask Occupy New York to leave Zuccotti Park because they are using the park for a political protest, they may be able to ask them to leave for other reasons. For example, if the park becomes unusable by anyone other than protestors, they could essentially be asked to leave so that others could use the park. Or, if they were creating too much noise, sleeping in the park, or acting in other manners that might block the use of the park by other park goers or community members, these might indeed constitute violations of reasonable rules.

Finally, according to Professor Kayden there is little case law established on what constitutes “reasonable” rules when applied to privately owned public spaces, and certainly none about political protesters using those spaces, so there are no clear guidelines about how a court might rule if action was taken by the park’s owners.

In the end, the situation at Liberty Square may be shaped more by public relation issues than by the legal issues. Neither Brookfield Office Properties, the owners of the public space known as Zuccotti Park, nor the New York Police Department are likely to want to be perceived as initiating a crackdown against protesters that would be watched around the world and could potentially spark even larger protests.